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State v. Mixton

Court of Appeals of Arizona, Second Division

July 29, 2019

The STATE of Arizona, Appellee,
William MIXTON, Appellant.

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          Appeal from the Superior Court in Pima County, No. CR20162038001, The Honorable Sean E. Brearcliffe, Judge.

         Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Linley Wilson, Assistant Attorney General, Phoenix, Counsel for Appellee

          Joel Feinman, Pima County Public Defender, By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant

         Presiding Judge Eppich authored the opinion of the Court, in which Judge Eckerstrom concurred in part and dissented in part and Judge Espinosa concurred in part and dissented in part.


         EPPICH, Presiding Judge:

         [¶1] William Mixton appeals his convictions for twenty counts of sexual exploitation of a minor under fifteen years of age, arguing police violated his federal and state constitutional rights by obtaining, without a warrant, information from two service providers identifying him as the sender of certain incriminating

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internet messages. He contends the trial court erred in failing to suppress evidence obtained as a result of that warrantless acquisition of information. We conclude that, although the information was obtained in violation of article II, § 8 of the Arizona Constitution, the good-faith exception to the exclusionary rule applies. Accordingly, we affirm Mixton’s convictions and sentences.

          Factual and Procedural Background

         [¶2] In March 2016, an undercover detective investigating child exploitation placed an ad on a popular internet advertising forum targeting offenders interested in child pornography and incest, inviting those interested to contact him to join a group chat on a messaging application known for minimal verification of its users’ identities. Several people responded to the ad, including one who provided his messaging application screen name "tabooin520" and asked to be added to the group chat. In the days after the detective added this user to the group, the user posted several images and videos depicting child pornography. When the detective sent a person-to-person message to the user thanking him for the pictures, the user responded by sending the detective additional images of child pornography in personal messages.

         [¶3] At the detective’s request, federal agents participating in the investigation served a federal administrative subpoena on the messaging application provider to obtain the user’s IP address.[1] Once the provider furnished the IP address, the detective was able to determine the user’s internet service provider (ISP) by using publicly available information. Again, federal agents served a subpoena, and as a result, the ISP supplied the street address of the user to whom the IP address was assigned. Based on this information, the detective obtained a search warrant for that address.

         [¶4] Mixton lived in a room at that address. During execution of the search warrant, police seized from Mixton’s room a cell phone, an external hard drive, a laptop computer, and a desktop computer, each of which contained numerous images and videos containing child pornography. In some of the folders containing these images and videos, police also found images of Mixton, and images the detective had sent to the user via the messaging application.

         [¶5] Based on images found on the devices in Mixton’s room, a grand jury indicted Mixton on charges including twenty counts of sexual exploitation of a minor under fifteen years of age. The trial court severed counts for other offenses, and after a four-day trial for sexual exploitation, a jury convicted Mixton on all twenty counts. For each count, the court imposed a seventeen-year sentence, all to be served consecutively. We have jurisdiction over Mixton’s appeal pursuant to A.R.S. § § 13-4031 and 13-4033(A)(1).

          Motion to Suppress

         [¶6] Before trial, Mixton moved to suppress both the subscriber information obtained via the administrative subpoenas and all evidence collected as a result of that information including the evidence obtained during the search of his home. He argued that both the Fourth Amendment and article II, § 8 of the Arizona Constitution protected his reasonable expectation of privacy in the subscriber information, prohibiting law enforcement from obtaining that information without a warrant or other court order. After brief oral argument, the trial court denied the motion, ruling that Mixton had no recognized privacy interest in the subscriber information.[2]

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         [¶7] On appeal, Mixton reasserts his contention that both the Fourth Amendment and article II, § 8 protect the identifying information he transmitted to the service providers. We review de novo constitutional issues raised in a motion to suppress, considering only the evidence presented at the suppression hearing and viewing that evidence in the light most favorable to upholding the trial court’s ruling. State v. Blakley, 226 Ariz. 25, ¶ 5, 243 P.3d 628 (App. 2010). Here, the parties did not present evidence at the motion hearing, however, arguing the motion on their filings. The relevant facts appear to be undisputed; we view them in the light most favorable to upholding the ruling. Cf. State v. Navarro, 241 Ariz. 19, n.1, 382 P.3d 1234 (App. 2016) (considering undisputed facts to decide suppression motion where no hearing held).

         [¶8] As a preliminary matter, Mixton urges us to address the issue under article II, § 8 before we address it under the Fourth Amendment in order to "honor[ ] the intent of the [state constitution’s] framers to provide an independent and primary organic law, and ... ensure[ ] that the rights of Arizonans will not erode even when federal constitutional rights do." Clint Bolick, Vindicating the Arizona Constitution’s Promise of Freedom, 44 Ariz. St. L.J. 505, 509 (2012). Our supreme court has held, however, that "decisions of the United States Supreme Court have great weight in interpreting those provisions of the state constitution which correspond to the federal provisions." Pool v. Superior Court, 139 Ariz. 98, 108, 677 P.2d 261, 271 (1984). While worded differently, article II, § 8 corresponds to the Fourth Amendment; both exist to protect against unreasonable searches and seizures. See State v. Ault, 150 Ariz. 459, 463, 724 P.2d 545, 549 (1986). Moreover, article II, § 8 "is of the same general effect and purpose as the Fourth Amendment, and, for that reason, decisions on the right of search under the latter are well in point on section 8." Malmin v. State, 30 Ariz. 258, 261, 246 P. 548 (1926). Very recently, our supreme court stated that "[t]he Arizona Constitution’s protections under article 2, section 8 are generally coextensive with Fourth Amendment analysis." State v. Hernandez, 244 Ariz. 1, ¶ 23, 417 P.3d 207 (2018). Indeed, its interpretations of article II, § 8 have rarely departed from Fourth Amendment precedent, and never in a case that does not involve physical invasion of the home. See State v. Peltz, 242 Ariz. 23, n.3, 391 P.3d 1215 (App. 2017). Therefore, while "we cannot and should not follow federal precedent blindly" in interpreting our state constitution, Pool, 139 Ariz. at 108, 677 P.2d at 271, neither can we turn a blind eye to it. On the other hand, our independent interpretation of article II, § 8 would be of little assistance in analyzing the Fourth Amendment, an area of law in which decisions of our federal Supreme Court bind us.

         [¶9] For this reason, and because Mixton has also challenged his convictions under the Fourth Amendment, we analyze the issues here first under the Fourth Amendment. In doing so we follow the lead of our supreme court, which has taken this approach in deciding article II, § 8 challenges. See, e.g., Hernandez, 244 Ariz. 1, ¶¶ 11-23, 417 P.3d 207; State v. Bolt, 142 Ariz. 260, 263-65, 689 P.2d 519, 522-24 (1984). We recognize our duty to independently interpret and give effect to our state constitution, however. See Pool, 139 Ariz. at 108, 677 P.2d at 271. To the extent we find rights in article II, § 8 beyond those that have been found under the Fourth Amendment, we may always exert our state sovereignty and avoid federal review through a "clear and express statement that [our] decision rests on adequate and independent state grounds." Michigan v. Long, 463 U.S. 1032, 1042 n.7, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983); see also Ault, 150 Ariz. at 466, 724 P.2d at 552 ("We decide this case on independent state grounds."); Bolt, 142 Ariz. at 265, 689 P.2d at 524 (similar).

          Fourth Amendment

         [¶10] The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "A ‘search’ under the Fourth Amendment occurs ‘when an expectation of privacy that society is prepared to consider reasonable is infringed.’ "

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State v. Welch, 236 Ariz. 308, ¶ 8, 340 P.3d 387 (App. 2014) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Before police conduct a search that infringes upon a person’s subjective and objectively reasonable expectation of privacy, police generally must obtain a warrant supported by probable cause. Carpenter v. United States, __ U.S. __, __, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 (2018). Evidence obtained in violation of this requirement may be subject to suppression, see Bolt, 142 Ariz. at 265-69, 689 P.2d at 524-528, but only the person whose rights were violated may claim the violation, see State v. Jeffers, 135 Ariz. 404, 413, 661 P.2d 1105 (1983); State v. Juarez, 203 Ariz. 441, ¶ 12, 55 P.3d 784 (App. 2002) (citing Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)).

         [¶11] In general, the Fourth Amendment does not protect information that a person reveals to a third party who then reveals it to the state, "even if the information is revealed [to the third party] on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (government’s warrantless acquisition of customer’s bank records held by bank did not violate Fourth Amendment); see also Smith v. Maryland, 442 U.S. 735, 744-45, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (warrantless collection of subscriber’s phone calls via "pen register" did not violate Fourth Amendment). Federal courts applying this principle have consistently found internet users to have no reasonable expectation of privacy in their IP addresses or in their subscriber information (name, street address, etc.) voluntarily conveyed to third-party service providers. See, e.g., United States v. Weast, 811 F.3d 743, 747-48 (5th Cir. 2016), cert. denied, __ U.S. __, 137 S.Ct. 126, 196 L.Ed.2d 99 (2016); United States v. Christie, 624 F.3d 558, 573-74 (3d Cir. 2010) ("Federal courts have uniformly held that ‘subscriber information provided to an internet provider is not protected by the Fourth Amendment’s privacy expectation.’ " (quoting United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008))), cert. denied, 562 U.S. 1236, 131 S.Ct. 1513, 179 L.Ed.2d 335 (2011); Perrine, 518 F.3d at 1204. Thus, an internet user has no recognized Fourth Amendment privacy interest in his IP address or the personally identifying information he or she submitted to his or her ISP to subscribe to its service. The third-party doctrine does not allow the government to obtain the contents of communications from a third-party communication technology provider, however. See Katz v. United States, 389 U.S. 347, 348, 359, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (striking down conviction based on warrantless surveillance of defendant’s phone calls via electronic listening device); Smith, 442 U.S. at 741, 99 S.Ct. 2577 ("[A] pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications."). Recently, the United States Supreme Court declined to extend the third-party doctrine established by Miller and Smith to "detailed, encyclopedic, and effortlessly compiled" cell-site location records, but characterized its decision as a "narrow one" and expressly left existing application of Miller and Smith undisturbed. Carpenter, 138 S.Ct. at 2216-17, 2220.

         [¶12] Mixton nonetheless contends that he had a reasonable expectation of privacy in his identity because his conduct shows a calculated effort to maintain anonymity: He used a messaging application known for collecting little information from its users and communicated in that application using a pseudonym. But while a person must have a subjective expectation of privacy in order to invoke Fourth Amendment protection, it must also be "one that society is prepared to recognize as ‘reasonable’ " for the Fourth Amendment to apply. Smith, 442 U.S. at 740, 99 S.Ct. 2577 (quoting Katz, 389 U.S. at 361, 88 S.Ct. 507 (Harlan, J., concurring)). As explained above, Smith and the federal circuit cases following it have established that an internet user has no recognized Fourth Amendment privacy interest in his or her identity. And while Mixton points out that he only shared his subscriber information with the service providers, this presumably was also true in the many federal cases that have found no reasonable expectation

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in such subscriber information. See, e.g., Weast, 811 F.3d at 747-48; Christie, 624 F.3d at 573-74; Perrine, 518 F.3d at 1204. No reasonable expectation of privacy exists under the Fourth Amendment by virtue of this fact: The federal third-party doctrine has been applied even when information is shared with only one third party. See United States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016). While Mixton notes that investigators obtained his IP address in addition to his identity, federal courts have not recognized a protected privacy interest in an IP address. See, e.g., Caira, 833 F.3d at 806-07; Weast, 811 F.3d at 747-48; Perrine, 518 F.3d at 1204-05. Finally, Mixton reminds us we are not bound to follow the federal circuit cases, see State v. Montano, 206 Ariz. 296, n.1, 77 P.3d 1246 (2003), but we are bound by Smith, which dictated the result in those cases.[3]

         [¶13] Because Mixton had no federally recognized privacy interest in his subscriber information or IP address, law enforcement did not need a warrant under the Fourth Amendment to obtain that information from Mixton’s service providers. ...

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